Stanfield v. Canada, 2005 FCA 107

Date: 20050317

Docket: A-373-04

Citation: 2005 FCA 107

CORAM:        RICHARD C.J.

SHARLOW J.A.

MALONE J.A.

BETWEEN:

                                                             HUGH STANFIELD

                                                                                                                                            Appellant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                        Respondent

                                 Heard at Vancouver, British Columbia on March 17, 2005.

            Judgment delivered from the Bench at Vancouver, British Columbia on March 17, 2005.

REASONS FOR JUDGMENT OF THE COURT BY:                                              SHARLOW J.A.

Date: 20050317

Docket: A-373-04

Citation: 2005 FCA 107

CORAM:        RICHARD C.J.

SHARLOW J.A.

MALONE J.A.

BETWEEN:

                                                             HUGH STANFIELD

                                                                                                                                            Appellant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                        Respondent

                                     REASONS FOR JUDGMENT OF THE COURT

             (Delivered from the Bench at Vancouver, British Columbia on March 17, 2005)

SHARLOW J.A.

[1]                This is an appeal from an order of a Judge of the Tax Court of Canada extending by 39 days the deadline for filing of a Reply to the Notice of Appeal: Stanfield v. Canada, 2004 D.T.C. 2923. The deadline for filing a Reply is 60 days after service of the Notice of Appeal, subject to any extension of time that may be granted by the Tax Court or on the consent of the appellant: Tax Court Rule 44. In this case, the appellant did not consent to the extension of time, and also opposed the Crown's motion.

[2]                The decision under appeal is a discretionary one. According to Reza v. Canada, [1994] 2 S.C.R. 394, such a decision should not be reversed on appeal unless it is based on an error of law or the judge has failed to give sufficient weight to all relevant considerations.

[3]                Generally, in determining whether to grant an extension of time, the four factors listed in Grewal v. Canada (Minister of Employment & Immigration), [1985] 2 F.C. 263 (F.C.A.) should be considered. The factors are (1) whether the party seeking the extension has a continuing intention to pursue the matter, (2) whether the position taken by the party seeking the extension of time has some merit, (3) whether the other party is prejudiced by the delay, and (4) whether there is a reasonable explanation for the delay. The weight to be given to each of these factors will vary with the circumstances of each case.

[4]                Counsel for the appellant argues that no extension of time can be granted if the other party suffers any prejudice at all from the delay. That is not correct. The question of the existence of prejudice to the other party, and the nature and extent of the prejudice, is only one of the factors to be taken into account in deciding whether to grant an extension of time. In this case, there was evidence of some prejudice to the appellant from the delay. The Judge did not ignore that evidence. Indeed, it is clear from his reasons that he was quite aware of it, as well as the relevant jurisprudence. However, given the nature of the prejudice, the relatively short additional delay resulting from the order, and the other evidence presented to the Judge in respect of the Crown's motion, we are not persuaded that the Judge erred in giving that factor little or no weight.

[5]                The appellant also argues that the explanation offered by the Crown for the delay in filing its Reply was not reasonable. We do not agree. An explanation was offered by the Crown, and it was accepted by the Judge. We are unable to say that he was wrong to accept that explanation.

[6]                Having considered all of the other submissions made by counsel for the appellant, we are not persuaded that there is any ground for interfering with the Judge's decision to grant the Crown additional time for filing its Reply.

[7]                This appeal will be dismissed with costs.

"K. Sharlow"